Judge Declares South Carolina Department of Health and Environmental Control Commits Take Through Modification of Sea Turtle Habitat

August 17, 2017

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Earlier this week, a federal district judge out of South Carolina issued a Preliminary Injunction mandating the immediate removal of certain structures because there had been a “take” under the Endangered Species Act for habitat modification which “significantly impairs” their ability to successfully nest.

The State of South Carolina, through budget proviso, authorized the construction of what the state called “wave dissipation devices.” The structures were constructed as a research project, which is critical under South Carolina law because new erosion control structures are prohibited. The structures were “vertical plastic pylons drilled into the sand and horizontal plastic bars stacked within the pylons,” which the court referred to as “seawalls.” If necessary the horizontal plastic bars could be removed to minimize potential impact to sea turtles.

The plaintiffs filed a lawsuit challenging the “sea walls as a violation of the Endangered Species Act.” As part of their case, the plaintiffs moved for a preliminary injunction, an extraordinary remedy that is rarely granted by the courts. In this case, however, the court granted this extraordinary remedy. Discussing the basis for its decision, the court focused on documented false crawls – when a sea turtle emerges from the water to lay her eggs but returns to the water without laying a nest – in the vicinity of the structures.

Despite the temporary nature of the structures as a research activity, and the flexibility to remove the horizontal plastic bars in front of any turtle’s nest, the Court required removal of the temporary structures during nesting season through the pendency of the underlying case. The Court noted that the Endangered Species Act has been call the statutory “pit bull of environmental laws” and the Congressional intent of the Endangered Species Act is to halt and reverse the trend of species extinction, “whatever the cost.”

For more information contact Rachael B. Santana at rsantana@llw-law.com or (561) 640-0820 or Frederick L. Aschauer, Jr. at faschauer@llw-law.com or (850) 222-5702.

Ms. Santana is an attorney with Lewis, Longman & Walker, P.A. in its West Palm Beach office. Prior to joining the firm, Ms. Santana assisted with policy and permitting issues related to sea turtles with the Sea Turtle Conservancy and assisted in drafting a Model Sea-Turtle Friendly Lighting Ordinance. She currently assists clients with permitting and development along the coast under the coastal construction control line program and consults on sea turtle lighting issues for projects.

Mr. Aschauer is Of Counsel with Lewis, Longman & Walker, P.A. in its Tallahassee office. Before he joined the firm, Mr. Aschauer served as General Counsel for the Florida Department of Environmental Protection (DEP). Prior to that, Mr. Aschauer was the Director of the Division of Water Resource Management at DEP, a position which included supervising the coastal construction control line program, which program includes the permitting of armoring structures. His current practice includes assisting clients with permitting issues associated with coastal development.